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Lord Thomas of Gresford: In the dying days of the previous government, the protests of the Liberal Democrats over the Police Bill, the Crime (Sentences) Bill and the Scottish crimes Bill were regarded by some of your Lordships as little more than Liberal hand-wringing while the Front Benches on both the Conservative and Labour sides got on with the serious stuff--the dutch auction on toughness: who was going to be "more righteous than thou"; who was going to be tougher. But what lay behind our protests was concern at the wild swing in penal policy over a period of a mere six years.

In March 1991, the noble Earl, Lord Ferrers, introduced the Criminal Justice Bill into this House with these words:

"The main purposes of the Bill are to reform sentencing practice--the way in which a sentence is determined--and the way in which sentences are actually carried out. The sentence in an

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individual case is, of course ... not a matter for Parliament. It is, after all, only the sentencer who will know all the facts of the case".--[Official Report, 12/3/91; col. 73.]

The noble Earl noted that for some offences only imprisonment was a fitting punishment. But he continued,

"for many other offences, particularly for property offences, it has long been recognised that imprisonment frequently does more harm than good. It can turn inexperienced offenders, who may be verging on the edge of a criminal career, into hardened criminals".--[col. 74.]

Those of us who sat as recorders in 1990 and 1991 will recall that we were urged by the Government not to take into account previous convictions. That caused conflict with the judges themselves, who thought the Government and the Home Office were going soft on crime. I recall a sentencing seminar in which a very senior judge advised us to ignore the Home Office--if we thought the defendant was to go to prison, he was to go there. "Let them find the places", is what he said.

At that time, again, in accordance with that philosophy, the attitude to penal reform was characterised by the noble and learned Lord, Lord Woolf, in his 1990-91 inquiry, in which he called for a civilised regime for prisons and justice for prisoners.

Then everything changed. The noble Baroness, Lady Hilton, has already referred to the 1994 Act. But it was in 1995 at the Conservative Party conference that the Home Secretary announced a change of policy--the minimum mandatory sentences and life sentences for second offences. The noble Lord, Lord Windlesham, referred to that as, "policy making by proclamation". I hope the noble Lord will forgive me if I adopt those words. Judges were thereafter characterised as soft on crime; and in response to that they filled the gaols to the point that, as the noble and learned Lord, Lord Ackner, just mentioned, the prison population has doubled and is likely soon to reach 83,000 inmates.

The White Paper, Protecting the Public, which followed the Conservative Party conference speech was discussed in this House on 23rd May, 1996. The late Lord Chief Justice, Lord Taylor of Gosforth, said, as many noble Lords will recall,

"I venture to suggest that never in the history of our criminal law have such far-reaching proposals been put forward on the strength of such flimsy and dubious evidence. The shallow and untested figures in the White Paper do not describe fairly the problems the Government seek to address. Still less do they justify the radical solutions it proposes".--[Official Report, 23/5/96; col. 1025.]

Indeed, one noble Lord was quite rightly moved to say of minimum mandatory sentences for burglary:

"That is not just; it is a perversion of justice and one which, I am sorry to say, is brought about on the basis of low motive".--[Official Report, 23/5/96; col. 1031.]

That same noble Lord later commented on automatic life sentences for pub punching or glassing 10 years after the event of an offence of unlawful sexual intercourse, and used these terms:

"I believe it to be a pity--and worse, an infinite shame--that matters of this sort are dealt with on the basis of mottos at party conferences. That demeans our society".--[col. 1032.]

It was, of course, the noble Lord, Lord Williams of Mostyn.

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Last week, I was decidedly hurt during the debate on Amendment No. 218A of this Bill to which the noble and learned Lord, Lord Ackner, referred, when the noble Lord, Lord Williams, questioned the motives of those of us who had proposed that Section 18 offences be removed from the list of mandatory life sentences. He asked:

"Is this a principled attack, or is it--dare I question?--simply an opportunist attempt to focus on one part of the provisions? Those with more metropolitan minds than my own might think that opportunism rather than principle was driving some of these observations--not all of them".--[Official Report, 24/2/98; col. 611.]

I was so deeply hurt that I was, very unusually, moved to interrupt and to inquire whether the noble Lord's views had changed since the views that I have recounted to your Lordships expressed only a year or so earlier. The noble Lord replied:

"My view has not changed".--[col. 611.]

As the noble Lord, Lord Renton, has said, referring to the "open mind" of the noble Lord, Lord Williams of Mostyn, it is open to the point where he can hold two conflicting opinions at the same time.

This amendment seeks to set up a permanent advisory council which will take criminal penal policy away from the fighting cocks in the cock pit and set up an authoritative body which can provide a continuing view of the criminal justice system and give to both government and the public a dispassionate and factual assessment of priorities, benefits and costs upon which policy can be based.

The sort of issues that such a council should address are matters such as these. What are the causes of criminal behaviour? How can crime be prevented or reduced? How successful is our present criminal justice system in convicting offenders, and what improvements are desirable? What types of sentencing should be introduced? We have heard today that the DTOs have been introduced without any prior consultation; we debated that provision earlier.

What are appropriate sentencing levels, having regard both to other jurisdictions and to public opinion? The noble Baroness, Lady David, said that it was abominable that this country should be the worst in Europe for imprisoning young people. The noble and learned Lord, Lord Ackner, made the same point. We need to compare our penal system with those of the European Union countries with which we work so closely.

Where should resources be spent in dealing with offenders? Should they be spent on building more prisons, or on courses of rehabilitation and support in the community? How can public confidence be improved in the system of criminal justice; and in particular how should the victims of crime be treated, both as witnesses and complainants, and how should they be compensated for the hurt that they have suffered?

I hope that an advisory council of this sort would provide no more the flimsy and dubious evidence referred to by the late Lord Chief Justice in his speech as the basis of policy. I support the amendment.

Lord Bingham of Cornhill: It is surely true that in the fields of criminal justice and penal policy we all,

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wherever we sit, share the same objectives. Wherever possible, we all want delinquency to be nipped in the bud. We all want extra-judicial remedies to be applied wherever they are appropriate and likely to be effective. We all want the law to be modern, intelligible and, again, effective. We all want trials to be conducted so that the prosecutor has a proper and adequate opportunity to prove guilt and the defendant has a proper and adequate opportunity to contest it. We all want sentencing to be carried out with due regard to the traditional objectives of retribution, deterrence, rehabilitation and, perhaps now, incapacitation, having regard to the circumstances of the individual offender and the individual offence. We all want penal methods to be effective and humane.

There is very little disagreement about ends, but finding the most effective way of achieving those ends is a much more difficult task. It is a task to which we have over the years devoted immense legislative effort. In the past decade there have been seven major criminal justice statutes and over 20 more limited measures.

It is, of course, necessary that the law, practice and penal policy should be kept under review and overhauled where necessary, and it is right that governments should be free to act quickly when the need arises. But surely it cannot be wise--and it is certainly not efficient--to enact a series of measures hard on the heels of each other, often modifying or repealing the previous measure. Noble Lords will be able to think of examples of legislative measures which have been brought into force, only for their deficiencies to be quickly demonstrated, and other measures which have never been brought into force at all.

The purpose of the amendment, which I support in no adversarial or carping spirit, is to provide the Home Secretary and the Government with a reservoir of wise, informed, objective and non-partisan advice on the important and intractable problems which confront him, them and us. It need not be a recipe for delay, although a measure of deliberation is not out of place in this field. There will be a financial cost, but that must be weighed against the cost of trial and error.

The recommendations of this body will in no way fetter the judgment of the Secretary of State, but I hope and expect that they will inform and strengthen that judgment. I hope that the amendment may be recognised as a constructive and helpful proposal, intended to promote the achievement of shared objectives.

5.30 p.m.

Lord Carlisle of Bucklow: I rise to support the amendment moved by the noble and learned Lord, Lord Ackner, and his call for the setting up of an advisory council. I remind Members of the Committee that there is nothing new in this proposal. An advisory council on the penal system was set up by the noble Lord, Lord Jenkins, in, I think, 1966 and existed until 1980. I had the honour to be a member of it in its early days. Other than myself, it had a highly distinguished membership. The noble Baroness, Lady David, was a member. I thought she was, but I see she shakes her head. The late Lady Wootton was its first chairman; the

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then Bishop of Exeter, Dr. Mortimer, was the vice-chairman. Professor Radzinowich, Dr. Walker, Sir Louis Blom-Cooper and various other people involved in the penal field were members.

The purpose of that council was to attempt to take matters of penal policy out of the ambit of party political debate. I believe that its reports were of value. Reports introduced the proposals for suspended sentences. The council looked at the whole question of non-custodial sentences. There was a report on prison policy, dealing with the question of a policy of dispersement as against a policy of concentration for serious offenders. There was a report on the regime of detention centres. I notice that in a recent article Sir Louis Blom-Cooper described some of the reports as being indifferent and some outstanding. In hindsight, one only remembers the ones that were outstanding. But I do know that we were greatly fortified by the existence of that advisory council when, in 1970, under the late Mr. Reginald Maudling, I became a junior Minister in the Home Office and we were faced with a paper from the noble Lord, Lord Allen of Abbeydale, pointing out the vast likely increase in the prison population unless action was taken, which led to the introduction of community service and suspended sentences and the extension of parole. I believe that the establishment of an advisory council would assist in taking these matters out of the political arena.

The noble Lord, Lord Judd, said in an earlier intervention that we must remember that the purpose of sentencing is not only punishment and deterrence but also the rehabilitation of the individual. There is a need to remember always the importance of punishment and deterrence, but I believe that a degree of humanity is also needed. I believe that had that council, which regrettably was done away with in 1980, existed during the past decade, we should have avoided the wide fluctuations in penal policies which we have seen and which the noble Lord, Lord Thomas, mentioned. I believe we should have avoided the absurdity of mandatory minimum sentences and the extension of the mandatory life sentence.

Over that period we have seen policies recommended at one stage being stood on their head by the same government a few years later. We have seen parties change completely their approach to individual proposals, largely affected by what they believed was the public opinion of the moment. I believe that a standing advisory council would assist in avoiding those pressures and would allow issues of penal policy to become matters of common consent and agreement in this House. I strongly support the amendment.

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